9 Reforming Europol
| (34843)
8229/13
+ ADDs 1-6
COM(13) 173
| Draft Regulation on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA
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| Legal base
| Articles 88 and 87(2)(b) TFEU; co-decision; QMV
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| Department
| Home Office
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| Basis of consideration
| Minister's letter of 21 January 2014
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| Previous Committee Reports
| HC 83-xxvi (2013-14), chapter 11 (8 January 2014);
HC 83-xiii (2013-14), chapter 21 (4 September 2013); HC 83-xi (2013-14), (10 July 2013);
HC 83-vii (2013-14), chapter 1(26 June 2013); and
HC 83-iii (2013-14), chapter 1 (21 May 2013)
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| Discussion in Council
| No date set
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| Committee's assessment
| Legally and politically important
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| Committee's decision
| Not cleared; further information requested
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Background and previous scrutiny
9.1 The draft Regulation, which would
establish a new legal base for cooperation between Member States'
law enforcement authorities and Europol, is subject to the UK's
Title V (justice and home affairs) opt-in. Our Third Report of
21 May 2013 provides a detailed overview of the draft Regulation.
Our Seventh Report of 26 June 2013 sets out the Government's
response to a number of questions we raised on the detail of the
draft Regulation.
9.2 The Government, anticipating that
the draft Regulation would attract strong Parliamentary interest,
offered an opt-in debate on the Floor of the House which we accepted.
In advance of the debate, which took place on 15 July 2013, the
Minister for Security (James Brokenshire) wrote to inform us that
the Government intended to recommend not opting into the
draft Regulation, but to play an active part in negotiations and
seek changes which would enable the Government to recommend opting
in once it had been adopted. He confirmed the Government's decision
not to opt into the draft Regulation in his letter of 18 July
2013.[40]
9.3 The Government's decision was based
mainly on two concerns. First, the draft Regulation would "increase
obligations on Member States to provide data to Europol and call
into question the operational independence of our police forces
in exercising control over their own data". Second, it would
create "a presumption that Member States will comply with
a request by Europol to initiate an investigation, as well as
a stronger requirement to explain why an investigation has not
been carried out". This would have implications for the
operational independence of the UK's law enforcement agencies.[41]
9.4 Negotiations on the draft Europol
Regulation coincide with separate negotiations arising from the
Government's decision to opt out (with effect from 1 December
2014) of 130-odd pre-Lisbon EU police and criminal justice measures
and to seek to rejoin 35 of them, including a 2009 Council Decision
establishing the current basis for cooperation with Europol.[42]
Opting back into the 2009 Decision will provide a temporary stop-gap
to secure continued UK participation in Europol. The Government
accepts, however, that participation in the new Regulation will
be necessary if the UK is to remain in Europol in the longer term.
9.5 The Government has told us that
it would be premature to embark on a detailed consideration of
whether, and on what terms, the UK would be able to cooperate
with Europol in the event that it is unable to secure the changes
needed to opt into the Regulation once it has been adopted. We
have suggested that an assessment of all the possibilities for
future cooperation with Europol, including outside the new legal
framework proposed by the Commission, would be helpful in determining
whether or not participation in the Regulation would be advantageous
for the UK. We continue to urge the Government to embark on such
an assessment and to share its analysis with us.
9.6 Meanwhile, we have welcomed the
Government's undertaking to provide regular progress reports on
the negotiations and asked the Minister to ensure that they address
the reasons given by the Government for deciding not to opt into
the draft Regulation, as well as any other significant changes
to the Commission's proposal. We have also asked for progress
reports on discussions with the Commission and other Member States
on the Government's recommendation to rejoin the 2009 Europol
Council Decision.
The Minister's letter of 21 January 2014
9.7 The Minister (James Brokenshire)
reports some progress made in initial Council Working Group discussions:
"The Lithuanian Presidency
brought forward a number of compromise proposals to try to address
concerns raised by Member States including the UK. The negotiations
are still at a relatively early stage, and we cannot guarantee
that any particular amendments will be in the final text. Nevertheless,
we have made some progress, particularly in the two areas that
led us not to opt in: Member States' obligations to provide information
to Europol and our concern that Europol could be able to require
Member States' law enforcement agencies to commence investigations."
9.8 The Minister reiterates the Government's
concern to ensure that Member States are not placed under an obligation
to provide information to Europol that would endanger national
security. He continues:
"The Presidency's compromise
text would exempt Member States from providing information where
this would pose a risk to national security, ongoing investigations
or an individual's safety, essentially restoring a provision that
appears in the existing Europol Council Decision. We strongly
welcome this. The European Parliament's rapporteur has
proposed a similar amendment.
"On a related issue, we will
continue to press for a provision in the text stating that information
will be shared with Europol on Member States' 'own initiative'
(as set out in the current Europol Council Decision). This would
confirm that Member States have the final say over the information
they provide to Europol. We have some support from Member States
for this position, and the European Parliament's rapporteur
has proposed an amendment to this effect. However, the Presidency
has not yet included this in its compromise text."
9.9 Turning to the role of Europol in
initiating a criminal investigation, the Minister notes:
"The Presidency's text does
soften the wording of the Commission's initial draft on Europol's
ability to request investigations (Article 6). The Commission
initially proposed in Article 6(3) that, when they received a
request from Europol, Member States' National Units should inform
it without delay of "the initiation of the investigation".
This implies that Member States would comply with the request.
The Presidency has proposed changing this to a requirement to
inform Europol of the Member State's decision on the request,
making it much clearer that Member States can refuse. We welcome
this. We will, however, continue to press for a more explicit
reference to Member States' discretion to agree to or decline
the request, as it is vital that Member States retain full control
over how their law enforcement agencies are deployed."
9.10 Another contentious element in
the Commission proposal is to merge the functions of Europol and
the European Police College (CEPOL) within a single EU Agency
for Law Enforcement Cooperation and Training. The Minister confirms
reports that Member States and the European Parliament oppose
the proposed merger, and adds:
"References to the merger have
not yet been deleted from the text, as the Presidency considers
the issue to be on hold until the Commission decides whether to
try and proceed with its proposal. We are optimistic that the
proposed merger will ultimately be rejected."
9.11 The Minister refers to Article
7(1) of the draft Regulation which requires Member States to cooperate
with Europol in the fulfilment if its tasks. He continues:
"Following interventions from
many Member States, including us, the Presidency has proposed
to amend the proposed duty on Member States to cooperate with
Europol (Article 7(1)) so it provides for a mutual obligation
on Member States and Europol to cooperate with each other. We
see this as positive, though we are still pressing for more information
on what specific obligations a 'duty to cooperate with Europol'
might place on Member States."
9.12 The Minister expects discussions
to continue during the Greek Presidency, with four Council Working
Group meetings scheduled between January and June 2014. He notes
that the European Parliament's Civil Liberties, Justice and Home
Affairs (LIBE) Committee has produced a draft report on the draft
Regulation and is likely to vote on possible amendments early
in 2014. He adds:
"Once that has happened, a
vote in plenary session may take place before the European elections,
but we do not expect any negotiations between the Parliament and
Council to take place until sometime after those elections. It
therefore remains extremely unlikely that the draft Regulation
will be adopted until 2015 at the earliest."
9.13 The Minister refers to our Twenty-ninth
Report, agreed on 8 January 2014, in which we set out the Opinion
of the Home Affairs Committee on the arrangements proposed in
the draft Regulation for Parliamentary scrutiny of Europol's activities,
as well as possible amendments being considered by the European
Parliament's LIBE Committee. Our Report asked the Government
to confirm that discussions on this matter within the Council
were proceeding on the basis that any new arrangements for inter-parliamentary
scrutiny of Europol involving national parliaments and the European
Parliament would only be introduced with the agreement of national
parliaments. The Minister concurs, adding:
"I share the view [...] that
the draft Europol Regulation's provisions in this regard should
be flexible and not prescriptive. They should also be in keeping
with Article 9 of the Protocol on the Role of National Parliaments,
which makes it clear that it is for the European Parliament and
national Parliaments, and not the European Parliament and Council
acting as co-legislators, to determine the organisation of inter-parliamentary
cooperation. The Presidency has not so far indicated when these
provisions are next due to be discussed. But we will firmly express
the view that any new arrangements should be agreed by national
Parliaments."
9.14 Finally, the Minister acknowledges
our request for a progress report on discussions with the Commission
on the Government's decision to seek to rejoin the 2009 Europol
Council Decision, and observes:
"The Government remains committed
to engaging fully with both Houses of Parliament on this matter.
We can reiterate our commitment to keep Parliament informed of
the progress of the negotiations as appropriate."
Conclusion
9.15 We thank the Minister for his
latest update. We look forward to receiving further progress
reports on discussions within the Council Working Group, as well
as a summary of the amendments proposed by the European Parliament
(if agreed before the May elections) and the Government's position
on them. We welcome the Minister's support for the views expressed
in our Twenty-ninth Report on the arrangements for scrutiny of
Europol's activities by the European Parliament together with
national parliaments, and are grateful for his assurance that
the Government will seek to ensure that any new arrangements are
agreed by national parliaments.
9.16 We note that negotiations on
the draft Regulation are unlikely to be concluded before 2015,
at the earliest. Progress on the Government's proposal to rejoin
the current 2009 Europol Council Decision will clearly be of some
importance in avoiding any operational gap in existing cooperation
between Europol and UK law enforcement authorities, pending the
adoption of the new Regulation and the Government's decision on
whether or not to opt in. We have made clear elsewhere that the
Government should seek a mandate from the House to guide its negotiations
on the measures subject to the UK's 2014 block opt-out decision
that it proposes to rejoin.[43]
In light of the Government's commitment to engage fully with Parliament
on this matter, we ask the Minister to tell us whether negotiations
on the 2009 Europol Council Decision have begun and, if not, when
he expects them to do so.
9.17 Given the uncertainty inherent
in any negotiating process, the risk of an operational gap in
the UK's cooperation with Europol after 1 December 2014 cannot
be discounted and the questions we have raised about the basis
for future UK cooperation with Europol can no longer be dismissed
as "hypothetical".[44]
We therefore reiterate once more our request for a considered
view from the Government of the scope for future UK cooperation
with Europol outside the framework established by the 2009 Council
Decision or that proposed in the draft Regulation. Meanwhile,
the draft Regulation remains under scrutiny.
40 See Eleventh Report of Session 2013-14, Reforming
Europol, HC 83-xi, dated 10 July 2013, and HC 83-xiii (2013-14),
chapter 21 (4 September 2013). Back
41
See letter of 9 July 2013 from the Security Minister (James Brokenshire)
to the Chair of the European Scrutiny Committee. Back
42
See Twenty-first Report of Session 2013-14, The UK's block
opt-out of pre-Lisbon criminal law and policing measures,
HC 683 dated 30th October 2013. Back
43
See HC 683. Back
44
See the Minister's letter of 18 July 2013, reported in HC 83-xiii
(2013-14), chapter 21 (4 September 2013). Back
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